Mosher v. Speedstar Div. of AMCA Intern., Inc.

• Decision Date: 21 December 1992
• Docket Number: No. 91-3273,91-3273
• Parties: Prod.Liab.Rep. (CCH) P 13,384 Robert C. MOSHER and Margaret M. Mosher, Plaintiffs-Appellants, v. SPEEDSTAR DIVISION OF AMCA INTERNATIONAL, INC., f/k/a Speedstar Division of Koehring Company, Koehring Company, a Delaware corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 823

979 F.2d 823

Prod.Liab.Rep. (CCH) P 13,384

Robert C. MOSHER and Margaret M. Mosher, Plaintiffs-Appellants, v. SPEEDSTAR DIVISION OF AMCA INTERNATIONAL, INC., f/k/a Speedstar Division of Koehring Company, Koehring Company, a Delaware corporation Defendants-Appellees.

No. 91-3273.

United States Court of Appeals Eleventh Circuit.

Dec. 21, 1992.

John P. Graves, Jr., Chartered, Sarasota, Fla., Donald E. Pervis, Donald E. Pervis & Associates, P.A., Bradenton, Fla., for plaintiffs-appellants.

Dickinson, O'Riorden, Gibbons & Shields, P.A., Claire L. Hamner, Richard R. Garland, Sarasota, Fla., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT, Chief Judge, BIRCH, Circuit Judge, and GODBOLD, Senior Circuit Judge.

TJOFLAT, Chief Judge:

Appellants Robert C. Mosher and Margaret M. Mosher appeal from an adverse verdict in this products liability suit brought under Florida law against the Speedstar Division of AMCA International, Inc. (Speedstar). Because the district court's jury charge was erroneous and prejudicial, we reverse and remand for a new trial.

I.

Robert C. Mosher was a water well driller. On July 9, 1984, he was employed by Guest Well Drilling Company, and was engaged in drilling several water wells on the site of the Manatee Junior College South Campus in Sarasota County, Florida. He was operating a Model 135 drilling rig manufactured by Speedstar. Although aware of the danger posed by overhead or buried power lines, Mosher had not checked carefully for their presence. There had been no power lines in the vicinity of the other wells which Mosher had drilled on the campus; however, a 7,200 volt distribution line from Florida Power & Light ran almost directly over the site at which he was to drill. While raising the derrick on the drilling rig, Mosher inadvertently caused the rig to come into contact with this line. When his foot slipped from the rig and touched the earth, Mosher became the primary conductor of electricity to the ground, and was seriously injured.

Mosher and his wife filed suit against Speedstar in June 1988, under theories of strict products liability and negligent design. The case went to trial on March 16, 1990. Mosher argued that the rig was defective and Speedstar was negligent in that (1) the derrick lacked an insulating guard, (2) the rig had no grounding device, (3) the rig included no proximity warning system, and (4) the operator's station had no warning placards alerting the operator to the danger of contacting high voltage power lines. Speedstar responded that since Mosher was aware of the hazard posed by such lines, (1) he was negligent in operating the rig without checking for high voltage wires, (2) his knowing misuse of the rig made him the sole cause of the accident, and (3) he assumed the risk of the injury from an open and obvious danger. At the close of evidence the court denied both parties' motions for directed verdict, and the jury returned a verdict in favor of Speedstar on both theories.

Mosher brings this appeal, claiming that (1) he was entitled to a directed verdict on "the liability questions of defect and/or negligence," (2) the court so erroneously instructed the jury that it in effect directed a defense verdict, and (3) the prejudicial effect of the instructions was magnified by the "improper and prejudicial comments and conduct of defense counsel." Because we reverse and remand for a new trial based on the erroneous jury charge, we need not address Mosher's other contentions.

II.

Mosher contends that the district court misstated the Florida law on the preclusive effect of his negligence, thereby confusing and misleading the jury to his detriment. We conclude that Mosher is correct.

Perhaps the most important duty of the trial judge is the careful, accurate instruction of the jury as to the law that they must apply to the facts that they find. The role of the appellate court, in reviewing a trial court's jury instructions, is to assure "that the instructions show no tendency to confuse or to mislead the jury with respect to the applicable principles of law." Rohner, Gehrig & Co. v. Capital City Bank, 655 F.2d 571, 580 (5th Cir. Unit B Sept. 1981); ¹ see also United States v. Myers, 972 F.2d 1566, 1574 (11th Cir.1992). We will not disturb a jury's verdict unless the charge, taken as a whole, is erroneous and prejudicial. National Indep. Theatre Exhibitors, Inc. v. Charter Fin. Group, Inc., 747 F.2d 1396, 1402-03 (11th Cir.1984); see also McElroy v. Firestone Tire & Rubber Co., 894 F.2d 1504, 1509 (11th Cir.1990).

We will reverse the verdict of the jury only where the appellant shows both error and prejudice. Subpart A examines Mosher's claim that the district court committed error in its instructions on "open and obvious" danger and product misuse. We conclude that it did. Subpart B considers whether Mosher was prejudiced by this error. We conclude that he was.

A.

Mosher sued Speedstar under strict products liability and negligent product design. ² The court gave instructions on both theories. ³ Pursuant to Fed.R.Civ.P. 51, ⁴ Mosher objected to two of the court's jury instructions. ⁵ Mosher claims that the instructions on patent danger and product misuse erroneously suggested that these were absolute bars to liability under Florida law. ⁶ We agree.

The court instructed the jury that a manufacturer was not required to warn against obvious dangers:

The law does not require that a manufacturer or a seller warn a user of a product about dangers which are obvious to all.

....

If you determine that the injury was caused by a dangerous property or characteristic that would have been known to anyone with common knowledge in the community, then the product cannot be defective because of the defendant's failure to warn.

Record, vol. 7, no. 78 at 72 (emphasis added). ⁷ The court gave the following instruction concerning product misuse:

Because a product is defective only when it is unsafe for its intended use, a finding of a defect may be precluded when the plaintiff was injured when he was using the product in an abnormal manner. Thus, abnormal use by the plaintiff which was not reasonably foreseeable by the manufacturer will negate liability.

Id. at 72-73 (emphasis added). ⁸

Florida law considers both patent dangers and foreseeable product misuse as elements of comparative negligence that do not bar recovery. The landmark case of Auburn Machine Works Co. v. Jones expressly rejected the patent danger doctrine:

[T]he obviousness of the hazard is not an exception to liability on the part of the manufacturer but rather is a defense by which the manufacturer may show that the plaintiff did not exercise a reasonable degree of care as required by the circumstances....

* [T]he principles of comparative negligence apply where this defense is raised.

366 So.2d 1167, 1167 (Fla.1979). ⁹ Florida law, therefore, does not bar recovery in design defect cases merely because the danger is open and obvious to the user. A patent danger may only serve as a bar to liability "where the complaint alleges that the negligence is solely in the lack of a warning," not "where the complaint alleges negligence in design." Babine v. Gilley's Bronco Shop, Inc., 488 So.2d 176, 178 (Fla.Dist.Ct.App.1986) (quoting the opinion of the trial court). ¹⁰ The instant case, however, is not a pure failure to warn case--Mosher has a well-developed design defect claim. The instruction was therefore erroneous.

The misuse instruction was also erroneous. The court may have led the jury to conclude that the defendant was not liable because Mosher "misused" the rig by contacting the power lines. The instruction is misleading in two ways. First, the record clearly indicated that the "misuse" of raising the derrick into power lines was foreseeable--and foreseen--by Speedstar. There was no issue before the jury concerning any unforeseeable misuse, and no unforeseeable misuse instruction should have been given. Second, Florida law does not suggest that misuse will "negate liability" as the district court instructed. Instead, misuse is simply to be considered as part of the comparative fault calculus. See Auburn Machine, 366 So.2d at 1171-72; West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976). ¹¹

We conclude that the court's instructions did not accurately reflect the Florida law of products liability. The court gave inappropriate instructions on patent danger and product misuse. This was error.

B.

We will not overturn a jury verdict because of erroneous jury instructions unless there is also a showing of prejudice. See Pesaplastic, C.A. v. Cincinnati Milacron Co., 750 F.2d 1516, 1525 (11th Cir.1985). "To determine the prejudicial effect of an incorrect statement of the law, the charge must be viewed in its entirety." Somer v. Johnson, 704 F.2d 1473, 1477 (11th Cir.1983). Mosher argues that the erroneous instructions given below may have caused the jury to return defense verdicts on both negligence and strict liability. Again, we agree.

Erroneous defense instructions are not normally prejudicial to the plaintiff unless the jury finds liability on the part of the defendant. See Voynar v. Butler Mfg. Co., 463 So.2d 409, 413 (Fla.Dist.Ct.App.1985) (stating that there would be no reversible error in omission of proper instruction regarding open and obvious danger where jury found that product was not defective). However, where the court's instructions improperly characterize the defenses as barring a claim or negating an element of the cause of action, our review is appropriate. Here, the district court's instructions on open and obvious danger, and product misuse may have preempted the jury's consideration of Mosher's claims.

Based on the court's instructions, the jury could have found that although Speedstar was negligent in not providing sufficient safety devices and warnings, Mosher was barred from...